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Monday, June 8, 2015

Is Obama Trying To Intimidate The Supreme Court On Obamacare Again?

Two months before the last Supreme Court ruling on Obamacare, on April 2, 2012 President Obama made a statement that was seen as an attempt to bully the court to approve the individual mandate as constitutional:

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.

Whether it worked or not cannot be proved, what is known is that at the very last minute Chief Justice Roberts changed his vote and the mandate was saved from the executioner. He based his change on his interpretation that the mandate was a tax, something that the president himself had denied.

On Monday, during his press conference at the G7, the president again made statements seemingly with the objective to influence the pending Supreme Court decision on Obamacare subsidies in states which did not set up their own exchanges. When asked about the case he said:

What I can tell state leaders is, is that under well-established precedent, there is no reason why the existing exchanges should be overturned through a court case. It has been well documented that those who passed this legislation never intended for folks who were going through the federal exchange not to have their citizens get subsidies. That’s not just the opinion of me; that’s not just the opinion of Democrats; that’s the opinion of the Republicans who worked on the legislation [Note: the previous statement is a lie]. The record makes it clear.

And under well-established statutory interpretation, approaches that have been repeatedly employed -- not just by liberal, Democratic judges, but by conservative judges like some on the current Supreme Court -- you interpret a statute based on what the intent and meaning and the overall structure of the statute provides for.

And so this should be an easy case. Frankly, it probably shouldn’t even have been taken up. And since we’re going to get a ruling pretty quick, I think it’s important for us to go ahead and assume that the Supreme Court is going to do what most legal scholars who’ve looked at this would expect them to do.

But, look, I’ve said before and I will repeat again: If, in fact, you have a contorted reading of the statute that says federal-run exchanges don’t provide subsidies for folks who are participating in those exchanges, then that throws off how that exchange operates. It means that millions of people who are obtaining insurance currently with subsidies suddenly aren’t getting those subsidies; many of them can’t afford it; they pull out; and the assumptions that the insurance companies made when they priced their insurance suddenly gets thrown out the window. And it would be disruptive -- not just, by the way, for folks in the exchanges, but for those insurance markets in those states, generally.

So it’s a bad idea. It’s not something that should be done based on a twisted interpretation of four words in -- as we were reminded repeatedly -- a couple-thousand-page piece of legislation.

In other words this is such an easy slam dunk for my side that the Supreme Court will easily vote my way, and if they don't they not judged fairly and have twisted the meaning of the bill. It will be interesting to see when the court releases the ruling in a week or two if there was another coincidental change in votes.